Member Article

Using muti or traditional preparations to intimidate, scare or threaten a colleague constitutes misconduct and employers have the right to “remove such purveyors of darkness from their environment”.

This was the outcome of recent arbitration proceedings before the National Bargaining Council for the Sugar Manufacturing and Refining Industry in the case of NASARIEU obo Mngomezulu v Tongaat Hulett Sugar Limited (Darnall) (case no. NBCS5-15, 15 June 2016).

The case centred on whether Tongaat Hulett Sugar Limited (“Tongaat”) had unfairly dismissed Louis Mngomezulu, a boiler panel operator who was accused of using witchcraft to intimidate the company’s HR manager for operations, Khanyo Nxele.

This was after Ms Nxele found a black gummy substance on the door handle of her BMW, which had been parked in the company’s parking lot. A block of the same substance was also placed under one of the car’s tyres. She knew that her car had been clean when she arrived at work and, sensing something sinister about the substance, she prayed as she removed it from her car. She described the substance to a traditional healer, who believed it was harmful muti.

After viewing CCTV footage of the parking lot, which showed Mr Mngomezulu as the only person near her car at the relevant time, Ms Nxele reported the incident to the General Manager of the Darnall Mill, where they were employed.

Mr Mngomezulu was charged with placing the safety, health and/or life of Ms Nxele at risk by placing the substance on and near her car, with the intention, “through the practice and belief in witchcraft”, to cause her spiritual, mental or physical harm. He was accused of breaching the relationship of trust and good faith between him and his employer, which made his ongoing employment relationship “untenable”.

Mr Mngomezulu, who had been on a final written warning at the time, denied using witchcraft on Ms Nxele, claiming that he was in the parking lot at the time to collect his overalls. He was subsequently dismissed and referred a dispute to the bargaining council for resolution, and later arbitration.

The key issue before the council was whether Mr Mngomezulu had placed the substance on and near Ms Nxele’s vehicle and whether this amounted to an act of witchcraft intended to cause her harm.

The bargaining council heard evidence from the parties and a number of witnesses.

The Commissioner hearing the arbitration accepted that the relationship between Ms Nxele, as an HR manager, and Mr Mngomezulu, a shop steward for the National Sugar Refining and Allied Industries Union (“NASARIEU”), was likely to be tense. She also found Mr Mngomezulu’s version of events to be implausible after hearing the evidence and viewing the CCTV footage, which showed him to be the only person in the vicinity of Ms Nxele’s car at the relevant time.

During the arbitration proceedings, a certified sangoma testified that, based on the description of the gummy substance, she believed it was “stap stap”, which is made from the fat of different types of animals and various muti, and was intended to cause harm to Ms Nxele. While the Commissioner was cognisant of the fact that the sangoma had not seen the substance and her testimony was based Ms Nxele’s description of it, she found that the nature of the substance was not the critical issue – rather what was important was how Ms Nxele perceived it and her reaction to it, including that it had immediately made her feel uncomfortable.

During her deliberations, the Commissioner considered the right to participate in cultural life of one’s choice contained in section 30 of the Constitution and noted that “[a]ll aspects of African cultural beliefs, including witchcraft and the belief in supernatural forces, such as the ancestors, has to be recognised and endorsed.”

She added that: “The act of witchcraft does not have to achieve its purpose … for it to become an act of misconduct. … [T]he mere use of muti or traditional preparations to intimidate, scare or threaten another person is sufficient. … “The placement of the muti was an attempt to psychologically exploit [Ms Nxele] and create fear and panic in her, for herself and for her family and possessions. And it did cause her grief. This behaviour amounts to serious intimidation and cannot be tolerated in the workplace.”

The Commissioner confirmed that Mr Mngomezulu’s dismissal was justified due to his “reprehensible” behaviour in attempting to use a shared cultural belief system to intimidate a colleague. “That is unacceptable in any workplace and will most definitively break down a relationship of trust and cordiality that exists between an employer and an employee and between an employee and his colleagues,” the Commissioner held.

This decision embraces the sentiments expressed by the Supreme Court of Appeal in the Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others 2014 (1) SA 585 ("SCA"). In this case, an employee was dismissed after submitting a traditional healer’s certificate, rather than a valid medical certificate, as justification for time taken off from work. The matter proceeded all the way to the SCA, which dismissed an appeal brought by the employer. The SCA held that, had the employer appreciated the nature and purpose of the traditional healer’s certificate and its import, it could have accommodated the employee’s request.

* ENSafrica acted for Tongaat in this matter.